Publications

Amicus Curiae: Google, Inc. v. Oracle America

No. 14-410
______________________________________________________________________________________________________
In TheSupreme Court of the United States
_______________________Google, Inc.Petitioner,
v. Oracle America, Inc.Respondent.
_______________________On Petition for Writ of Certiorari to theUnited States Court of Appealsfor the Federal Circuit
_______________________
BRIEF OF SOFTWARE FREEDOM LAW CENTER
AND FREE SOFTWARE FOUNDATION,AMICI CURIAE IN SUPPORT OF RESPONDENT
_______________________

Should this Court grant Petitioner’s request for review
by writ of certiorari of the Federal Circuit’s erroneous
prediction that the Ninth Circuit would have reversed the
District Court’s conclusion that the application program
interface declarations of Respondent’s Java programming
language are uncopyrightable?

Interestof Amici Curiae

Software Freedom Law Center

Much of the world’s most important and most
commercially significant software is distributed under
copyright licensing terms that give recipients freedom
to copy, modify and redistribute the software (“free
software”).1
One could not send or receive e-mail, surf the World Wide
Web, perform a web search or take advantage of many of
the other benefits offered by the Internet without free
software. Indeed, this brief was written entirely with
free software word processors, namely GNU Emacs
and LATEX, each of which are not just competitive
with or superior to non-free software programs, but
which also provide their users with the freedom to
improve the program to fit their needs and reflect their
desires.

The Software Freedom Law Center (“SFLC”) is a
not-for-profit legal services organization that provides
legal representation and other law-related services to
protect and advance free software. SFLC provides
pro bono legal services to non-profit free software
developers and also helps the general public better
understand the legal aspects of free software. SFLC has
an interest in this matter because the decision of this
Court will have a significant effect on the rights of the
free software developers and users SFLC represents.
More specifically, SFLC has an interest in preventing
misapplications of copyright law that prevent innovative
development of interoperable free software, and in
educating parties on the benefits of free software
copyright licensing.

Free Software Foundation

This brief is filed on behalf of the Free Software
Foundation, a charitable corporation with its main
offices in Boston, Massachusetts. The Foundation
believes that people should be free to study, share and
improve all the software they use and that this right
is an essential freedom for users of computing. The
Foundation has been working to achieve this goal since
1985 by directly developing and distributing, and by
helping others to develop and distribute, software that
is licensed on terms that permit all users to copy,
modify and redistribute the works, so long as they
give others the same freedoms to use, modify and
redistribute in turn. The Foundation is the largest single
contributor to the GNU operating system (used widely
today in its GNU/Linux variant for computers from PCs
to supercomputer clusters). The Foundation’s GNU
General Public License is the most widely used free
software license, covering major components of the GNU
operating system and tens of thousands of other computer
programs used on hundreds of millions of computers
around the world. The Foundation strongly rejects the
use of copyright law to prevent implementation of
interoperable free software by inappropriately applying
copyright principles to ideas instantiated in the rules of
inter-program communication called “application program
interfaces.”

Summaryof Argument

The Court of Appeals for the Federal Circuit failed to
apply, as required, federal copyright law as interpreted by
the Ninth Circuit to the review of the District Court’s
judgment. Instead, the court below implausibly predicted,
based on no evidence in prior decisions, that the Ninth
Circuit would have departed conclusively from the settled
law established by Lotus Development Corp. v. BorlandInternational, Inc., 49 F.3d 807 (CA1 1995), aff’d byequally divided court, 513 U.S. 233 (1996). Fashioning a
new and conflicting standard for testing both the
copyrightability and infringement of interface declarations
in computer programs meant to interoperate with other
programs through previously published application
program interfaces (APIs), the court below departed
from the regime under which software makers—both
commercial firms and non-proprietary “free software”
communities—have been successfully innovating for the
last fifteen years. The court below made no effort to
demonstrate that its new test has any precedent in Ninth
Circuit copyright cases, nor in any cases decided in any of
the regional Courts of Appeal, during the twenty-first
century.

Despite the manifestly erroneous character of the
decision below, the petition for writ of certiorari should
not be granted. The precedential weight of a decision so
evidently mispredicting the law of another Circuit is
essentially nil. This Court does not grant certiorari for the
general correction of error. The decision of the District
Court on the copyrightability of the standard class
declarations of Respondent’s Java programming language
was made on the basis of careful consideration of the
particulars involved: both the nature of the application
program interfaces at issue, and the special factual
considerations (scale and complexity of the interfaces
involved) urged by Respondent Oracle. Judge Alsop made
his decision on the basis of an educated understanding of
the principles of computer programming not equally
apparent in the opinion of the Federal Circuit below. The
District Court’s decision was not only correct, but
narrowly factbound, unsuitable as a vehicle for the
clarification of broad principles by this Court that would
justify a grant of certiorari.

In addition, there is insufficient case or controversy
remaining in this matter to present a public interest in its
continued adjudication. The court below found that
Petitioner Google had made infringing use of 7,000 source
code lines of interface declarations. Oracle America, Inc.
v. Google, Inc., 750 F.3d 1339, 1353 (CAFC 2014).
Even if that code contained copyrightable matter, it is
undisputed that petitioner could have copied, modified
and redistributed all that material, royalty free, under the
terms of amicus Free Software Foundation’s GNU
General Public License, version 2, the world’s most
widely-used free software copyright license, under
which Respondent Oracle offers the entirety of its Java
programming language, Standard Edition product.
Because, regardless of the disposition of this matter,
Petitioner Google can make entire royalty-free use of
the material whose copyright, if any, was allegedly
infringed (and was at all relevant times validly so
licensed), the dispute between the parties is merely
theoretical, without practical consequences in the
resolution of any actual case or controversy, and a grant
of certiorari would be inappropriate on prudential
grounds.

Argument

I.The Decision Below is Wrong

The court below correctly stated that its role was to apply
federal copyright law to the instant litigation as it would
be applied by the Ninth Circuit. 750 F.3d, at 1353. The
court below apparently would have us believe that the
Ninth Circuit has been awaiting an opportunity to
unsettle a legal consensus crucial to the software
industry in place since this Court’s affirmance by
equal division of Lotus Development Corp. v. BorlandInternational, supra. But the opinion below discloses no
evidence whatever that the Ninth Circuit would hold
that application program interface declarations are
copyrightable. This conclusion was reached by the Federal
Circuit on a frolic and detour of its own, in the course of
which it misunderstood the factual record found by the
District Court, used the law of the Tenth Circuit to
predict the law of the Ninth Circuit, and in other ways
created legal confusion and uncertainty from whole
cloth.

At issue in this case is the copyrightability of 7,000 lines
of interface declarations in the application program
interfaces (APIs) of the computer programming language
called Java. APIs are the rules by which computer programs
interact with one another, analogous to the rules of
games played by humans, like the rules of checkers or
chess, which are agreed by all to be uncopyrightable
ideas.2
The particular API declarations at stake in this case are
the lists of verbs in a language: the Java programming
language. When the Java language was first developed at
Sun Microsystems, Inc.—Respondent’s predecessor in
interest—the language’s creators defined a series of
“standard functions” that every program written in the
Java language could use without having to write them
from scratch. Because of the linguistic structure of Java,
those functions are divided into “classes,” which define the
“methods” applicable to operations on particular data
“objects.”

As described by the court below, 750 F.3d, at 1350-51,
respondent Google literally copied these declarations into
the source code of its Android mobile operating system, so
that programs written in the Java language would
run in that environment. The declarations associate
uncopyrightable names with the functions available
to programs written in Java. It is uncontested that
Petitioner implemented all those functions using code of
its own, with a single exception (the “rangeCheck”
method) which Google argued represented de minimis
infringement. The District Court held that the Java
standard language declarations were an uncopyrightable
“method of operation,” without which it would be
impossible to operate a Java language processor
running users’ programs written for execution by a
Java system. The court below reversed, holding the
declarations copyrightable and their literal copying to be
infringement.3
On rangeCheck, and some other ancillary files not
otherwise at issue here, the court below remanded to the
District Court for a decision on the defense of fair
use.

The court below, in other words, predicted that the
Ninth Circuit would have reversed the District Court, on
the grounds that the declarations are in themselves
copyrightable. It predicted that the Ninth Circuit would
not follow the decision of the First Circuit in Lotus,
supra, holding that the literal copying of a command
menu hierarchy and macro language for a spreadsheet
program was not infringing. In Lotus, the Court of
Appeals held that because the command hierarchy was a
“method of operation,” it was an idea, like the rules of a
game, outside the scope of copyright under 17 U.S.C.
§102(b).

The Ninth Circuit has never expressed any criticism of
Lotus, supra, or indicated that it would not follow the
decision if similar facts arose within its jurisdiction. The
court below reached its tortured contrary conclusion by a
series of wrong steps:

First, the Federal Circuit held that the Ninth Circuit in
Sega Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510,
1525 (CA9 1992) expressed approval for the Second
Circuit’s approach to computer program copyright
infringement that culminated in Computer AssociatesInternational v. Altai, 982 F.2d 693 (CA2 1992), which the
court below asserted differs from the holding in Lotus,
supra, because it “eschews bright line approaches and
requires a more nuanced assessment of the particular
program at issue.” 750 F.3d, at 1357. The Ninth Circuit, in
other words, would predictably not apply the rule in
Lotus, supra, because three years before Lotus was
decided it expressed approval of the Second Circuit’s
supposedly conflicting doctrine. Second, in support of this
prediction of Ninth Circuit law, the court below cites
Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (CA10 1997), in
which the Tenth Circuit expressed doubt about the
decision in Lotus, supra, shortly after its affirmance by
equal division in this Court.

Thin as this basis is for the prediction that the Ninth
Circuit would have rejected Lotus, supra, the argument is
made still weaker by the fact that the test set forth by the
Second Circuit in Altai, supra, and mentioned approvingly
in Sega, supra, concerned the method for determining
infringement in the event of non-literal copying from
computer program source code (what in more familiar
literary copyright examples would involve “adaptation” of
the copyrighted work), while Lotus, supra, and the
instant case are cases of literal copying of application
program interface declarations or equivalent menu
hierarchies. Why the court below confidently predicted
that the Ninth Circuit would fail to follow the holding of
the First Circuit—affirmed by equal division in this
Court—on facts squarely apposite, in favor of a novel
approach based on cases inapposite because about
adaptation rather than literal copying, it does not
say.

In order to interoperate with other programs over a
common API, the cooperating programs use the same
names for data and function entities that they will
separately implement. The names themselves are, all
agree, uncopyrightable entities. Their relationship and
organization is the method of interoperation. That
methods of operation expressed as application program
interface declarations are not copyrightable, which is the
central holding of Lotus, supra, has been a productive
and valuable legal certainty for the U.S. software
industry.

Every firm in the information technology industry assumes
that it is free to implement programs interoperating with
other programs through published, defined APIs. The
communities of programmers who make and share “free
software,” like amicus Free Software Foundation and
other clients of amicus Software Freedom Law Center,
also assume that they are free to implement software of
their own creation that interoperates with other software
over publicly-defined APIs. Oracle itself benefits from the
rule in Lotus, supra, in its own widespread and highly
profitable software support business. Overturning the rule
in Lotus subjects every effort at software interoperation
throughout the information technology economy to
110-year state-granted monopolies of uncertain breadth.
To predict that the Ninth Circuit would casually overturn
the stability of existing doctrine, after fifteen years, on the
basis of dicta in its cases from more than twenty years ago
is utterly implausible. To summon support for that
prediction from a Tenth Circuit case decided more than
fifteen years ago is even more unconvincing.

II.Nevertheless, the Petition for Writ of CertiorariShould be Denied

The court below predicted, on the basis of no compelling
evidence, that the Ninth Circuit would depart from
settled existing law in a novel direction which, as amici
supporting the petition have said at length, would be
destructive alike of commercial certainty and freedom to
implement, thus inhibiting the progress of science and
the useful arts. Neither the Ninth Circuit nor any
other regional Court of Appeals is likely to defer to
this improbable supposition, so the error is largely
self-limiting. Such erroneous predictions of other courts’
holdings are not a suitable employment of this Court’s
scarce resources in review by certiorari. In addition, the
actual holding in this case is factbound, revolving entirely
around the question of how computer programming
language APIs work. Moreover, the parties do not
dispute that Google has a right to use all the putatively
copyrighted materials at issue royalty-free, under the
terms of amicus Free Software Foundation’s GNU General
Public License. No public interest is served by the
continued adjudication of a dispute in which there is
nothing in fact at stake.

Respondent Oracle did not argue in the courts below
the broad proposition stated by the Federal Circuit,
that application program interface declarations are
copyrightable. The rule in Lotus, supra, is in fact too
widely embedded in the practices of the industry for even
a party widely known for its indomitable pertinacity in
litigation to have attacked so broadly. Instead, Oracle has
argued throughout that the scale of the Java APIs and
their overall complexity raises them from the status of
mere “methods of operation” to copyrightable computer
programs.

The District Court rejected this argument as a matter
of fact. The implementations of the standard Java
classes are indeed complex and copyrightable computer
programs. But (with the exception of “rangeCheck”), the
implementations are no part of the litigation, the District
Court found, because there is no allegation that Petitioner
copied them. Petitioner’s relevant conduct, so far as the
record disclosed to the District Court, was limited to the
literal copying of the declarations. And these, the District
Court found, are, as a matter of fact, limited to the names
of parts of the Java language, organized in the one way
that the grammar of the language requires them to
be organized. Declaring those names, the District
Court found, can only be done in this fashion: If Java
programs are to be written in the language those
declarations specify, those declarations can only be
written in that one way to make interoperation possible.
Since no other way of writing the declarations will be
functional, the organization as well as the names
themselves is entirely functional in character. It is, as the
Lotus court held on precisely similar facts, a method of
operation, an idea, properly placed outside the scope of
copyright by §102(b). See Lotus, supra, 49 F.3d, at
818-19.

This is a factual finding about how computer
programming languages like Java define the method
functions—which are analogous to verbs—that make up
the language. The court below ignored this factual finding.
Instead, it said, the issue was one of originality only: from
the perspective of the original creators of the Java
language at Sun Microsystems, the language could have
used different names for basic functions, and organized its
grammar differently. 750 F.3d, at 1363. But this entirely
misunderstands the real technical context of the District
Court’s decision. Can one make up a entire language and
copyright, say, the lexicon of Greek, because one could
instead have used different words and invented Arabic? In
the extremely specialized and confined context of the APIs
for a computer programming language, this is the
claim which the court below substituted for the actual
highly-limited factual finding of the District Court.
Granting certiorari on this record commits this Court to a
revision of the erroneous holding below on the basis of a
review of the very narrow technical issue on which
the District Court’s copyrightability holding actually
rests.

B.There Is No Public Interest In ContinuedAdjudicationofthis Dispute

There is no dispute between the parties that Petitioner
can use, copy, modify and redistribute all of the putatively
copyrighted material at issue, royalty free, under the
terms of the most widely-used free software copyright
license, the GNU General Public License, version
2, published by amicus Free Software Foundation.
The Free Software Foundation also publishes a Java
programming language system, including standard
class libraries declaring the same method names,
under the GNU GPL license, version 2 or any later
version.

It appears that Petitioner wrongly supposed at some
time in the past that use of Respondent’s Java source code
under the terms of GNU GPLv2 would limit the licensing
of the Java programs that third parties could install and
run on Android systems. Andy Rubin, then an important
Google executive with responsibility for Android, wrote an
email to that effect which was part of the evidence at
trial:

[A]s far as GPL-ing the VM, everything
that is linked with
the VM would get infected. The problem
with GPL in embedded systems is that it’s
viral, and there is no way (for example)
OEMs or Carriers to differentiate by adding
proprietary works. We are building a
platform where the entire purpose is to let
people differentiate on top of it.

Trial Exhibit 230, at 1.

This was simply wrong. As users of the Java
programming language as supplied historically by Sun
Microsystems and now by Respondent Oracle well
know, though the Java language and standard classes
are available for all to copy, modify and redistribute
freely, without payment of royalties, under the GNU
GPL, these parties develop, use, and distribute Java
programs for execution by Oracle Java under a great
variety of proprietary and free software copyright
licenses.

Petitioner Google is now and has been entitled to use
all the material at issue in this case, royalty free,
under GNU GPL. Although Petitioner unaccountably
failed to assert and preserve this defense of license at
trial, it was in fact at all times licensed under the
GNU GPL, version 2, to take all the steps it took in
relation to the Java standard class declarations by
Respondent Oracle or by its predecessor in interest, Sun
Microsystems.

Given that the parties are agreed that Petitioner has
the right to royalty-free use of all the material at issue
under GNU GPL, and it is in addition entitled to claim
that its use was licensed at all relevant times, there is no
public interest in the adjudication of a controversy
which remains merely theoretical if not factually
moot.

Conclusion

For the foregoing reasons, the petition for writ of
certioriari should be denied.

1Pursuant to Sup. Ct. R. 37.6, amici note that no counsel for aparty authored this brief in whole or in part, and no counsel or partymade a monetary contribution intended to fund the preparation orsubmission of this brief. No persons other than amici curiae andtheir counsel made a monetary contribution to its preparationor submission. Petitioner has consented to the filing of thisbrief through a blanket consent letter filed with the Clerk’sOffice, and waived timely notification. Respondent has beennotified of and consented to the filing of this brief pursuant toSup. Ct. R. 37.2(a).

2See United States Copyright Office, FL-108, CopyrightRegistration of Games (2011) (“Copyright does not protect the idea fora game, its name or title, or the method or methods for playing it.”);1-2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright§2.18[H][3][A] (2014) (“[N]o copyright may be obtained in the systemor manner of playing a game.”).

3It is uncontested that these 7,000 lines of declarationscontained in the source code files for Oracle Java are available foreveryone to copy, modify, and redistribute freely under the terms ofthe GNU General Public License, version 2, published by amicus FreeSoftware Foundation. No one has ever satisfactorily explained howPetitioner Google can be liable for copyright infringement for makingliteral use of them as interface declarations for other programs,when such use is freely allowed to all. Google unaccountablyfailed to raise this particular defense of license in the courtsbelow.